Code of Criminal Procedure, 1973 – ss.211-224, 386 – Alteration of charges – Permissibility of – Seven accused persons (one of whom died during trial) attacked victim-complainant – Six accused persons (including the three appellants-accused) convicted for offence u/ss.307 r/w s.149; s.148 – Appellants’ conviction u/ss.307, 148 upheld by High Court and sentence u/s.307 reduced from seven years to five; other three co-accused persons acquitted – On appeal, held: ss.211-224 dealing with framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges – Courts are free to weigh evidence and determine whether an independent conviction is possible in case group prosecution u/s.149 fails – Appellants did not suffer any adverse effect when the High Court held the three of them individually guilty for attempted murder, without the aid of s.149 – Appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields – Attack was pre-planned and calculated – Each of them individually attacked the complainant with a deadly object in furtherance of the common intention of killing him – Requirements of s.34 established – Offence u/s.307 is clearly made out against each of them – Appellants to be taken into custody to serve the remainder of five-year sentence – Conviction u/s.148 set aside – Penal Code, 1860 – ss.34, 141, 148, 149, 307 – Witness – Sentencing.
Penal Code, 1860 – ss.34, 149 – Difference between – Discussed.
Witness – Independent witnesses – Non-examination of – Held: Any adverse inference against the non-examination of independent witnesses needs to be assessed upon the facts and circumstances of each case.
Disposing of the appeals, the Court
HELD: 1.1 Framing of charge and its subsequent alteration
Before the members of an ‘unlawful assembly’ can be vicariously held guilty of an offence committed in furtherance of common object, it is necessary to establish that not less than five persons, as mandatorily prescribed under Section 141 read with Section 149 of the IPC had actually participated in the occurrence. It is not uncommon, like in the present facts, when although the number of accused is more than five at the time of chargesheeting, but owing to acquittals of some of them over the course of trial, the remaining number of accused falls below five. It may be true in such cases, as rightly urged by the appellants that the charge under Section 148 and 149 IPC would not survive. This does not, however, imply that Courts can not alter the charge and seek the aid of Section 34 IPC (if there is common intention), or that they cannot assess whether an accused independently satisfies the ingredients of a particular offence. Sections 211 to
224 of CrPC which deal with framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges. The only controlling objective while deciding on alteration is whether the new charge would cause prejudice to the accused, say if he were to be taken by surprise or if the belated change would affect his defence strategy. The emphasis of Chapter XVII of the CrPC is thus to give a full and proper opportunity to the defence but at the same time to ensure that justice is not defeated by mere technicalities. Similarly, Section 386 of CrPC bestows even upon the appellate Court such wide powers to make amendments to the charges which may have been erroneously framed earlier. Furthermore, improper, or non-framing of charge by itself is not a ground for acquittal under Section 464 of the CrPC. It must necessarily be shown that failure of justice has been caused, in which case a re-trial may be ordered. The contention of the appellants to the contrary is nothing but hypertechnical. Courts are free to weigh the evidence and determine whether an independent conviction is possible in case group prosecution under Section 149 IPC fails. Although both Section
34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section
149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence. [Paras 15-17, 22][993-F-H; 994A-E; 997-C-E]
1.2 Both the common object and the common intention are traced back to the same evidence, i.e., evaluating the conduct of the accused as narrated by the injured and the eye-witness-his brother (PW-3). A perusal of Section 313 CrPC statement shows that the appellants were expressly confronted with their specific role in the offence: that each of them had individually attacked the complainant with a deadly object in furtherance of the common intention of killing him. This Court, therefore, does not find that the appellants suffered any adverse effect when the High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC. On facts, an offence under Section 307 IPC is clearly made out against each of the three appellants. The medical experts have in their depositions clearly explicated that the weapons used and the injuries inflicted were more than sufficient to cause death in ordinary course of nature. The appellants made death threats to the complainant on 24.01.1998 and then they used sharp edged weapons the very next day and further declared that they would not rest till they killed the complainant. The recovery of the axe (kulhari) from Rohtas, which is on the record as Exhibit-P7, further punches holes in the mask of denial worn by the appellants. That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently pre-meditated. The incident was not in a spur-of-the-moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields. Their attack on 25.01.1998 was thus pre-planned and calculated. [Paras 23, 24 and 26][997E-H; 998-A-B; 998-E-F]
2. Independence of witnesses
Although it is always ideal that independent witnesses come forward to substantiate the prosecution case but it would be unfair to expect the presence of third-parties in every case at the time of incident, for most violent crimes are seldom anticipated. Any adverse inference against the non-examination of independent witnesses thus needs to be assessed upon the facts and circumstances of each case. In fact, it must first be determined whether the best evidence though available, has been actually withheld by the prosecution for oblique or unexplained reasons. The present crime took place in a private agriculture field and not in the middle of a busy public place. The defence has not claimed that other farmers also gathered at the scene and yet have not been examined. Earlier in the trial they had tried to discredit the ocular testimony of PW-3 by claiming that he might not have been able to witness the incident owing to standing crops in the field. Nonetheless, they expect this Court to believe that there could have been others who witnessed the incident but have deliberately been suppressed by the prosecution. [Paras 27, 28][998-G-H; 999-A-C]
3. Sentencing and Leniency
The appellants and their deceased co-accused were all armed with deadly weapons. They surrounded the complainant and in a brutal attack caused him gruesome injuries and disabled him for life. The appellants have not undergone even half of their sentence period. Having enjoyed the more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor. This Court does not find any justification to show leniency and reduce the sentence. Given that earlier the appellants had been ordered to serve their two sentences of five years under Section 307 and one year under Section 148 of IPC concurrently, acquittal in the latter would effectively have no impact on their outstanding period of sentence. [Paras 29-31][999-E-G]
4. Conclusion:
Both the appeals are found to be without any merit so far as conviction of the appellants under Section 307 IPC is concerned. However, their conviction under Section 148 is setaside. Their bail bonds are cancelled and the State of Haryana is directed to take the appellants into custody to serve the remainder of their five-year sentence as awarded by the High Court. [Para 32][999-H; 1000-A]
Amar Singh v. State of Punjab (1987) 1 SCC 679 – distinguished.
Kantilal Chandulal Mehta v. State of Maharashtra (1969) 3 SCC 166; Karnail Singh v. State of Punjab AIR 1954 SC 204 : [1954] SCR 904; Willie (William) Slaney v. State of MP AIR 1956 SC 116 : [1955] 2 SCR 1140; Chittarmal v. State of Rajasthan (2003) 2 SCC 266 : [2003] 1 SCR 49; Atmaram Zingaraji v. State of Maharashtra (1997) 7 SCC 41:[1997] 3
Suppl. SCR 432; Nallabothu Venkaiah v. State of Andhra Pradesh (2002) 7 SCC 117 : [2002] 1 Suppl. SCR 606; Kumari Shrilekha Vidyarthi v. State of UP (1991) 1 SCC 212 : [ 1990] 2 Suppl. SCR 625 – relied on.
Dhupa Chamar v. State of Bihar (2002) 6 SCC
506:[2002] 1 Suppl. SCR 412; Subran v. State of Kerala (1993) 3 SCC 32 : [1993] 2 SCR 84; Nallapareddy Sridhar Reddy v. State of AP 2020 SCC Online SC 60; Subran v. State of Kerala (1993) 3 SCC 722 – referred to.
Mahbub Shah v. King Emperor AIR 1945 PC 118 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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